IO WAI (the trustee of YU HENG LONG also known as ALEX YU) v. LEUNG TAK FAT AND OTHERS

IO WAI (the trustee of YU HENG LONG also known as ALEX YU) v. LEUNG TAK FAT AND OTHERS

The court found Leung failed to prove adverse possession from 11 December 1996 or at any material earlier date, accepted that the Will created a contingent trust for the Son preventing limitation from barring the Son's right, held that Mui intermeddled and breached executrix duties and facilitated Leung, and therefore ordered delivery of vacant possession, mesne profits and nominal damages; the counterclaim for adverse possession was dismissed.

Citation
[2024] HKDC 283
Parties
Plaintiff / Trustee: IO Wai (Mother, trustee for Yu Heng Long); 1st Defendant: Leung; 3rd Defendant / Named Executrix: Mui; 2nd Defendant (claim Discontinued): 2nd Defendant; Beneficiary (son): Yu Heng Long
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
20 February 2024
Case Number
DCMP1864/2015
Procedural Posture
Miscellaneous Proceedings (originating Summons Under O.113, District Court) / Judgment at Trial
Outcome
Judgment for the plaintiff; counterclaim dismissed; orders for vacant possession, mesne profits and nominal damages; costs awarded in favour of plaintiff with costs nisi and taxation directions.
Legal Topics
Adverse Possession, Mesne Profits, Executorship Duties, Vacant Possession, Limitation Period, Probate and Administration
Source Language
EN
Trusts Property Succession Limitation Landlord and Tenant Adverse Possession Mesne Profits Executorship Duties +3 more

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Parties

IO Wai (Mother, trustee for Yu Heng Long)

Plaintiff / Trustee

Leung

1st Defendant

Mui

3rd Defendant / Named Executrix

2nd Defendant

2nd Defendant (claim Discontinued)

Yu Heng Long

Beneficiary (son)

Procedural Posture

Miscellaneous Proceedings (originating Summons Under O.113, District Court) / Judgment at Trial

Legal Issues

  1. 1 Whether Leung acquired possessory title by adverse possession since 11 December 1996
  2. 2 Whether the Will created a trust or future interest that prevented limitation from running against the beneficiary
  3. 3 Whether Mui validly renounced executorship or intermeddled and breached duties as executrix

Ratio Decidendi

The court found Leung failed to prove adverse possession from 11 December 1996 or at any material earlier date, accepted that the Will created a contingent trust for the Son preventing limitation from barring the Son's right, held that Mui intermeddled and breached executrix duties and facilitated Leung, and therefore ordered delivery of vacant possession, mesne profits and nominal damages; the counterclaim for adverse possession was dismissed.

Court Disposition

Judgment for the plaintiff; counterclaim dismissed; orders for vacant possession, mesne profits and nominal damages; costs awarded in favour of plaintiff with costs nisi and taxation directions.

Orders

  • Leung do deliver vacant possession of the Property to the Mother forthwith.
  • Leung do pay to the Mother mesne profits at HK$17,706 per month for the agreed historical period (six years before issuance of the Originating Summons dated 15 July 2015) until the date of judgment.